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The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Tuesday, 21 September 2010

Chairman Jeremy opened the proceedings with the usual household announcements before introducing Manny Silverman of Silverman Associates who was charged with opening the day's activities, or as he put it a "the Warm-Up Act". Silverman suggested that since last year when he spoke at the conference, nothing has really changed for the better in the fashion industry. The main change he suggested was the impact of the internet and the growth of counterfeit of goods. IP protection, whether by opportunities or threat, highlights the need for legal protection. Silverman suggested that when companies consider expansion overseas the senior managers fail to recognize the complex legal and regulatory issues effecting them in other jurisdictions, including IP protection. (picture, left- the IPKat sporting the latest cheetah print trend)

The UK has seen a large influx of new retailers - Anthropologie, Sting, Forever 21 - establishing retail chains in this country. However, the reality is that the fashion industry is very competitive, and as soon as these brands enter the UK they face a struggle of either sinking or swimming. There are few concepts that are truly original, Silverman suggested, and we are seeing shorter life-cycles of trends, but it is the brand the remains the constant. It is the brand, Silverman seemed to suggest, that is the lifeboat for a company and the critical factor for business survival. Unlike the transient nature of designs or designers and thus infringement of designs, brands are the constant representation of a company's character. Brands are where the value lies for a company; they say "who you are" and "what you are". Silverman suggested that the one message that needs to get across to clients and brand owners is that in the long term a well-managed and supported brand can be highly successful for hundreds of years, for example like Burberry founded in 1856.

With the internet and the increase of social-networking, fashion houses have been able to increase their brand awareness internationally. It is this the impact of the internet that has had the most incredible impact on the fashion industry by providing a ready-accessible vehicle for vendors and buyers of a plethora of brands and products. Silverman suggested that the internet affords sellers a quick and relatively inexpensive method of trading and marketing themselves to a global audience of buyers. However, warned Silverman, although sellers may be benefit from this so do counterfeiters. He indicated that this was exemplified by data that suggested that 10 years ago the border agency seized 800,000 counterfeit goods at the border. Last year this number was 10 million. Jeremy Phillips disagreed and said that these numbers need not suggest an exponential growth in counterfeit but could just be better detection.

But for those who think counterfeiting is a new phenomena, Silverman explained that it has actually been around for thousands of years. Silverman illustrated these points with historical antidotes with the sole object of showing again, that nothing is new - be it counterfeits or design. But it is the growth of e-commerce that makes the issue of counterfeits an endemic problem in the fashion industry. The growth of e-commerce's impact in the fashion industry has also changed the perception of counterfeit fashion in the public's mind. It is often, suggested Silverman, thought of as a victimless crime. However, Silverman said that it is actually a "malignant problem" affecting brands resulting in a depreciation of the brand's value and increased costs in enforcing fashion brand's rights. This cost is compounded by the difficulty in ascertaining the identity of the infringer - be it name or country of origin where the counterfeit goods are manufactured.

Silverman closed on a grave note saying that no one seems to have any answer on counterfeit and neither did he, but suggested a concerted effort by all players, including search engines, in the fashion industry to address the problem of counterfeit and e-commerce may go somewhere in addressing the issue. eBay, readers will recall from their victories in Tiffany v eBay, spends around $10 million in monitoring and combating the sale of counterfeit goods - a factor which the court seemed to take into account for not finding eBay actively promoting the sell of counterfeit products.

Rebecca Chong from the Institute of Practitioners in Advertising was next up. The first part of Chong's presentation focused on the common problems encountered by advertisers in the field of intellectual property law. The first common concern of advertisers, Chong suggested, was how to protect slogans. Slogans, by their nature, are difficult to protect by way of a copyright due generally to the lack of originality and sufficient skill, labor and judgment. The difficulty in protection is also encountered in trade mark registration due to potential descriptive nature of slogans. Chong suggested that advertisers should always check whether ads can be used via the AdSlogan database and registered trade mark searches.

Another prominent issue is the use of competitor's trade mark in ads which Chong suggested many advertisers seem to think they have "free reign" to use. Chong warned advertisers to be careful in buying competitor's trade mark keywords following the Google AdWords case. Although Google was not found liable by the ECJ, the advertiser's liability was emphasized as probable. Chong suggested that this decision would mean that brand owners could pursue advertisers directly. Chong also suggested other tools such as non-disclosure agreements for protecting advertising pitches, not using stock photographs without consent, and being cautious of parodying other advertising campaigns also be kept in mind by advertisers.

Comparative advertising, a hot tool for our country's supermarkets, can also find advertisers in hot water. Chong sped through the statutory and common law before touching on the L'Oreal v Bellure where she lingered to emphasize that this case has essentially made it more easy for an advertiser to attract liability. Chong also warned that advertisers need to be aware of celebrity's rights either by way of passing off or trade mark registration of the celebrity's name.

For a change of scenery, Chong introduced the role of the Advertising Standards Association (ASA) who administers the advertising codes, and the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP). Chong alerted us that as of March 2011, the CAP codes will include digital content including Twitter and Facebook pages. Chong emphasized Rule 3 of the CAP and BCAP regarding misleading advertising. Chong illustrated Rule 3 by a recent ASA adjudication concerning a Louis Vuitton ad showing a woman stitching a Louis Vuitton handbag. Complaints were made complaining that the ads falsely represented that the bags where handmade when they were not. The complaints were upheld. Chong emphasized that advertisers should really only make claims in ads that are easy to prove by evidence.

The very topical issue of airbrushing in the fashion and beauty industry captured the audience's interest. Chong explained that in a Girlguiding poll of 1,109 girls, 50% of those aged 16-21 consider having surgery to change their looks. Recently, Debenhams launched a ban to all airbrushing from future campaigns. The government has also suggested the use of a kitemark to alert consumers where ads have been air-brushed. However, Chong suggested it may be difficult how to define "air-brushing" and it may have a deep impact on the fashion industry. She was critical that consumers put the advertiser between a rock and a hard place in that although they do not want to be bombarded by false unattainable images of perfection, they also desire to see aspirational advertising. Chong suggests that the rule against misleading advertising actually goes somewhere in addressing the issue of airbrushing at the moment, without the need of further regulation.

Chong closed her speech with examples of ASA complaints in beauty industry. One complaint concerning the Olay Definity illumninator Definitive Illuminator modelled by Twiggy which was upheld and one regarding L'Oreal and Cheryl Cole's hair where the ad was used with extensions, which was not upheld.

A member of the audience suggested that the tort of privacy could be employed to rescue an unauthorized use of a celebrity's image in the absence of an American-style image rights. This Kat disagrees because privacy only protects the publication of private information, by way of photographs or otherwise, where the individual had a reasonable expectation of privacy. This Kat cannot think of many cases where such a photograph, unless it was Naomi Campbell-esque, could be held to be private.

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